The State v. Hale

• Decision Date: 08 May 1900
• Citation: 56 S.W. 881,156 Mo. 102
• Parties: THE STATE v. HALE et al., Appellants
• Court: Missouri Supreme Court

56 S.W. 881

156 Mo. 102

THE STATE v. HALE et al., Appellants

Supreme Court of Missouri, Second Division

May 8, 1900

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Reversed and remanded.

Rechow & Pufahl and B. J. Emerson for appellants.

(1) Statements implicating a defendant are not admissible in evidence though made in his presence when the circumstances are such as not to require him to speak. State v Young, 99 Mo. 674; State v. Glahn, 97 Mo. 694; State v. Mullins, 101 Mo. 516; 1 Vol. Greenleaf's Ev., (5 Ed.), sec. 197; State v Howard, 102 Mo. 148; 3 Am. and Eng. Ency. Law (1 Ed.) 494. (2) It was improper to ask the defendants whether they had been charged with a former offense or convicted of an offense. State v. Bulla, 89 Mo. 598; State v. Taylor, 98 Mo. 240; State v. Warren, 57 Mo.App. 502; Kelley's Crim. Practice, 238; State v. Houx, 109 Mo. 663; State v. Smith, 125 Mo. 7; State v. Vandervort, 50 S.W. 892; Gardner v. Railroad, 135 Mo. 97; State v. Howard, 102 Mo. 149. (3) There was no such contradiction in the testimony as to warrant instruction numbered 3 given by the court and even if there was it does not correctly state the law. White v. Lowenberg, 55 Mo.App. 69; Iron Mountain Bank v. Murdock, 62 Mo. 74; White v. Maxey, 64 Mo. 559; Link v. Harrington, 47 Mo.App. 267. (4) Instruction numbered 5 given by the court is erroneous. It tells the jury that one of the defenses is what is known as an alibi. An alibi is not a defense but it devolves upon the State to prove the presence of the defendant at the commission of the crime. Nor is such instruction cured by the giving of a proper instruction on the same subject for defendant. State v. Howell, 100 Mo. 663; State v. Woolard, 111 Mo. 256; State v. Moore, 117 Mo. 397; State v. Taylor, 118 Mo. 164; State v. Harvey, 131 Mo. 346.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

The objection to the evidence as regards what defendant did at the preliminary trial when he nodded his head in assent to a criminating fact is not well founded. The evidence was an admission of guilt and was also properly covered by instruction 6, given by the court of its own motion before the cause was submitted to the jury. State v. Patterson, 73 Mo. 695; State v. Hopkirk, 84 Mo. 278.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

Defendants were indicted in the circuit court of Polk county for burglary in the first degree. Thereafter at the April term 1899 of said court they were put upon their trial, found guilty as charged, and their punishment respectively fixed at ten years' imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest they appeal.

The facts briefly stated are, that on the night of October the 8th, 1898, and for many years prior thereto, Mrs. Martha A. Martin, an aged widow, lived comparatively alone upon a farm in said county. She had no one living with her at the date named except a little girl, a sister-in-law of one of the defendants, who by her permission had gone to the house of one of the defendants to spend the night. About half past ten or eleven o'clock that night, after Mrs. Martin had retired, two men appeared at the door of her house, and, upon the pretext by one of them that her daughter who lived in the neighborhood was very ill and had sent for her, requested her to open the door, and come with him, that he had brought a horse for her to ride, etc. Mrs. Martin did not believe this story, and fearing some harm at their hands refused to open the door, whereupon they forced it open, seized her, choked her, and otherwise abused her, at the same time insisting that she had a large amount of money which she had received for some stock which she had recently sold, and they intended to have it. She however had but a few cents about the house, not exceeding forty, which through their violence and threats they forced her to surrender to them. The defendants lived near Mrs. Martin, she had known them since they were small boys and over twenty years, and testified that she recognized them at the time they broke into her house and robbed her, as the defendants herein.

The court at the request of the State and over defendant's objections gave instructions numbered one and two as asked by the State; which instructions are as follows:

"1. The court instructs the jury, that if you believe and find from the evidence, beyond a reasonable doubt, that the defendants, at the county of Polk and State of Missouri, at any time within three years before the finding of this indictment, which was on the 21st day of October, 1898, did forcibly break the outer door of the dwelling house of Martha A. Martin, and enter said building, and at the time of such breaking and entering there was a human being in said building, and that the defendants did break and enter said building, with the intent to rob the said Martha A. Martin of any money or property that might be in said building, they will find the defendants guilty as charged in the indictment, and assess their punishment at imprisonment in the penitentiary for a term of not less than ten years.

"2. The crime of robbery may be committed by taking the money or property of another, from his person or presence, forcibly and against his will, or by violence to his person, or by putting him in fear of some immediate injury to his person."

The court of its own motion instructed the jury as follows:

"1. The law presumes the defendants' innocence until the State has proven their guilt beyond a reasonable doubt, and unless the State has so proven their guilt, you will acquit them. But such a doubt, to authorize an acquittal on that ground alone, should be a substantial doubt of guilt, and not a mere possibility of their innocence.

"2. You may find defendants both guilty or both not guilty, or you may find one guilty and the other not guilty, as you shall believe from the evidence the facts to be.

"3. The jury are the sole judges of the weight of the evidence and the credibility of witnesses. And in passing upon the weight to be given to any witness's testimony the jury may consider the manner and deportment of the witness upon the stand, his means of knowing the facts of which he testifies, the interest, if any, he manifests, the interest, if any, he has in the result of the trial, his relationship, if any, to any party interested in the result of the trial, the probability or improbability of his testimony being true, and other matters, that in the nature of things would add to or detract from the value of such witness's testimony. And if you believe that any witness has willfully testified falsely to any material matter in this case you should disregard such false testimony and you are at liberty to disregard the whole or any part of the testimony of such witness.

"4. The defendants are competent witnesses in their own behalf, and their testimony is to be received by you and weighed by the same rules as the testimony of any other witness. In passing upon what weight you will give to their testimony, you may take into consideration the fact that they are the defendants on trial, and their interest in the result of the trial.

"5. One defense in this case is what is known in law as an alibi that is that the defendants were not present at the time and place of the commission of the offense charged in the indictment, if any such offense has been committed, but that they were at that time at another and different place. As to this defense you are instructed that it is not necessary for defendants to prove an alibi to your satisfaction beyond a reasonable doubt, nor by a preponderance of the testimony, but if, after a full and fair consideration of all the facts and circumstances in evidence, you entertain a reasonable doubt as to whether or not the defendants were present at the time and place of the commission of the offense charged in the indictment, if such offense has been committed by any one, it will be your...